Statutes Amendment (Drug Offences) Bill

by Vickie Chapmanon August 02, 2018

Second Reading

I thank members for their contributions and the member for Elizabeth for his indication, on behalf of the opposition, of the general support to the thrust of this bill, upon noting a foreshadowed amendment, which he welcomes. May I say that, if I were to generally summarise the impetus for the reform in this legislation, it is the recognition that cannabis, amongst all our elicit drugs can no longer, in 2018, be treated as though it is something just a little bit more serious than tobacco.

I am old enough to remember a time when that was the accepted norm. Partaking in cannabis smoking was seen as a socially acceptable recreational activity. Back in those days, if you were a uni student, or at a TAFE college or a teachers' college or whatever, and this was an activity you imbibed in, then it was almost acceptable, so much so that it became quite common in the 1980s for prime ministers and premiers to be asked, 'Did you ever inhale when you were at school, university or college?'

I am happy to tell the house that I did not either smoke it or inhale it. It was not something I was interested in. Nevertheless, it was treated in a very different manner. Certainly, a lot of evidence over the last 20 or 30 years has developed to question whether sustained use of this drug has a deleterious effect on the health of the user. It has become increasingly apparent that psychiatrists, and particularly other people in the mental health area, identify this as a precursor to schizophrenia and hallucinations. To summarise, the effect is most commonly to be psychotic, in addition to other behaviour.

Certainly, great concern was raised about the impact on sociably acceptable behaviour when using it or after a period of sustained use. Because this was one of the drugs of choice in the sixties and seventies, it probably took some decades to consider this, test it and identify whether it had a long-term effect. In the 2017 coronial inquest into young Lewis McPherson's fatal shooting, the Coroner had a contemporary assessment of this. Reporting in that coronial inquest, he clearly identified his grave concern about the effect of this drug on the user of the gun in that instance.

He sent out a very clear plea in his recommendations and findings that this matter was serious. The other young man who used the gun was under the influence. It was one of the features of his demeanour in the lead-up to that shooting. It had to be treated seriously. The opposition, as we were at the time, took the view that this was something that could not go unattended. We expressed some disappointment that the previous government had not acted on this—even before the coronial inquiry, it was known that this played a feature in that death—but that was not going to happen.

We then committed to the public in the lead-up to the last election that if we had the honour of office we would pursue this matter and that we would treat cannabis in a manner that is as serious as for other illicit drugs. It is one thing to say that cannabis is not really the drug of choice anymore, that it is not the really big deal and that everyone has moved on to ice. Members need to understand that, sure, drugs of choice change, but that does not mean that everyone has abandoned heroin, other methamphetamines, pills or cannabis. It means that the social movement of illicit drugs has gone into other areas that are usually cheaper, more accessible and more potent for the value for money, able to be manufactured more easily, etc.

I am told by the toxicology division of Forensic Science SA that we now have a situation in Australia where there is new drug being manufactured every week. The reason we have new drugs manufactured by the bad guys is that they want it to be undetectable either at a crime scene or in the bloodstream of the user. Our toxicology experts have to work harder again to examine the new product, identify what is in it and then work out ways of testing its presence in their work, which supports our criminal justice system and our health system.

We came to this on the basis that the McPherson coronial inquiry was a lightning bolt into an understanding of what the real situation is, and we took up that issue. In coming into office, we brought to this legislation a number of areas in relation to penalty increases, which we had committed to, and the establishment of aggravated offences, which was not uncommon for the previous government to do. However, as we identified the more serious aspects of a crime or the aspects that ought to be elevated to a higher penalty—for example, when children were used to commit an offence—then we needed to have an aggravated category, and we have a two-tier system. This is nothing new in the law, but we felt in this area it needed to be added.

If I understand the member for Elizabeth's contribution, he is not averse to that. He understands the significance of what we are trying to do there, right across to the field of manufacturing. Where there was clearly some indication in the consultation process by the Law Society, for whom we do have high regard, and others in the community, that the penalty, specifically at the very lower end—that is, for possession and personal use of cannabis—we included in the proposal, commensurate with other offences, the $500 to $2,000 penalty or the imprisonment term because that is entirely consistent with the other legislation.

As has been acknowledged, we were living in the dark ages with penalties for this: back in 1984, jaywalking resulted in a greater fine than possession of cannabis. Clearly something had to be done, but the response we had indicated that the simple possession offence should not attract a gaol term as an option. I remind members that in this proposal we have a continuation of the capacity for expiation processing of these, so there is no diminution of that, but sentencing into prison was not considered an option.

The Legal Services Commission, the Law Society, SAPOL and SA Health all gave different views. The Courts Administration Authority, Chief Justice, Chief Magistrate and Judge of the Youth Court had not identified any issues of major concern but some of the others had. What I think we ought to be mindful of, and did not weigh heavily on my mind, was that a number of those from the public who did respond to the consultation on this matter were people who were strong advocates of the decriminalisation of cannabis completely.

I want to make it absolutely clear that that is not my position, it is not the government's position and it is not the Liberal Party's position. We consider that this drug is in the Controlled Substances Act for good reason and we are not on a course of decriminalisation. I think we have the support of the opposition in that regard, but there are some people in our parliament, in the general community and many in the Greens movement, who take the view that there should be no penalty whatsoever and that it should be absolutely decriminalised. That is fine. They have their view. I do not agree with it. We on this side of the house do not agree with it.

When they contact us to say that it is outrageous that it is proposed that someone go to prison for a cannabis offence, I read that within the envelope of their complete rejection of cannabis being an illicit drug and we end at that point any recognition of that for the purposes of their objection. However, we have considered the feedback from what I would call the legitimate arguments—the stakeholders in the community for whom we have regard and whom we recognise need some modification, and that is exactly what we are doing.

I am pleased to say that we have support from the opposition on the other matters that are still extant. A number of issues were raised. By way of clarity, one was in relation to the diversion practice. As members might understand, we have a Nunga court, a domestic violence court and a drug court. We have speciality courts in South Australia and we have had for decades.

The Drug Court is one that operates as a means by which someone can come before it, have their crime acknowledged, enter a plea of guilty and commit to undertaking a course of treatment for the purposes of helping them with their possible addiction or their practice or in relation to using a drug, but also, significantly, to avoid the road of prosecution and sentencing in the normal criminal process. It has been a measure that has been around for a long time. What we have found, in the course of looking at drug reform, is that some people used the Drug Court as a means to get out of having to be prosecuted.

Repeatedly, they would put their hand up and say, 'I am guilty. I will elect to go to the Drug Court. I will go and do a six-month program. I will have a course of medication and counselling, or whatever, in relation to my drug addiction. I will submit to that, so let me off.' SAPOL were one of the agencies that brought this to our attention. They thought those people were exploiting the system, abusing the process and not really genuinely committing to do something to reform their behaviour, but in fact were just avoiding prosecution and conviction.

We felt on this side of the house that it was something we needed to do something about. Initially, in this regard, we considered that someone could have two attempts to do this in a 10-year period and then they would be disqualified from being able to use it again as a sort of diversion, essentially as a means of discipline and not letting them exploit the system. It was also to stop wasting police resources because they are the ones who arrest these people, take it through the court process, set up appointments for drug treatment that they do not turn up to and follow up on them and bring them back into custody perhaps or issue another summons.

It is a huge amount of police time, not to mention those people who sit there waiting at the drug testing clinic or at the facility that has scheduled time and professional expertise to help these people and they do not turn up, or they turn up for the first two sessions, tick that off and think nobody will notice anymore so they will not go to the last three sessions. An abuse of this process is simply not acceptable when we have precious resources that we need to target to those who need help and are prepared to have help and not to those who just waste their time and end up back in the court system anyway. So we have more court time, wasted police time, wasted professional drug counselling time and people who just exploit the system.

When we further consulted on this, some people in the health areas, for example, raised with me that for some of our drugs there may be a number of relapses which, given the history of taking of drugs—that is, the frequency and the time over which they have taken their drugs and the nature of the drug—their capacity, as well intentioned as they might be, may be difficult, and a relapse is likely and therefore they need an extra bit of time. Excluding them for 10 years is probably a bit too far. We needed to look at two chances within four years.

That modification has been made in the preparation of this bill. I am quite open about that because I think it is important that we protect as best we can the principle that for many people drug addiction, partaking in drugs and experimenting with drugs does become a health issue. They are sufficiently into it to know that they have a problem, but they are committed to get out of it and they need health resources to do it. We want to help them do that. We do not want to exclude the opportunity for genuine people who say, 'Look, I'm ready to do this.'

As a separate issue, we are progressing legislation where appropriate to have court orders made for children to be able to have that treatment. That is another part of the arm of the war on drugs and the protection of our children that we are pursuing. If we come back to this bill specifically, we listened to how we might advance the health options and make it absolutely clear that we needed to contemporise punishment for those who were already in the criminal lists, especially at the manufacturing end, and make it harder and more difficult with higher penalties for those who might use vulnerable people, including children, to sell drugs around schoolyards and things of that nature. We are very clear about that.

In one small part of this we say that imprisonment for two years does not have wholesale support. We as a government, with the support of the opposition, are determined to do everything we can to deal with drug use and abuse and to make sure that we get these other advances and reforms through. We do not want that delayed. We will peel that off in relation to the imprisonment proposal for personal consumption.

Finally, the member raised the matter of expiation, which I think I have indicated still continues. I am happy to answer the detail on that in committee. In relation to a reduction in drug diversions and the effect that might have on the courts, what I can provide to the house—and I think it is appropriate that I do so in committee with the advice of the department—is some data in relation to the noncompliance that occurs after the first or second attempt to help people in drug diversion as an illustration of how we are time wasting at the moment, bearing in mind that this cohort of people invariably ends up in the system anyway for punishment, usually by a fine.

We do not anticipate a greater incidence necessarily of incarceration at the lower end of the scale. I hope this has the effect of ensuring that the penalties, and potentially time in gaol at the higher end of the scale are increased. I do not think there will be any change in the numbers that go in, but if they are in gaol longer because they have manufactured drugs, then we support that. It may be that they will spend some extra time there, which is another challenge for our Minister for Correctional Services, but our government has made that commitment and we are honouring it in this legislation.

The final thing was in relation to medicinal use and industrial hemp. I note two things. Firstly, in relation to industrial hemp, this is the capacity now to be able to cultivate hemp on a commercial basis. We have legislation that not only provides for that but protects against any prosecution. It does set out quite a strict regime as to who can do it and the licensing terms for doing it. That is not the subject of the Controlled Substances Act reforms that we are doing here.

I turn secondly to what is commonly called medical marijuana. I am personally a great supporter of the significant research that is being undertaken into this miracle drug, really, in relation to children who might be epileptic, for example, who appear, with cannabis oil, to have very different behavioural outcomes. It is fantastic to see. I think if I were to give members any kind of analogy here, we use prescription drugs every day that are opiate based, and they do great work. Morphine and other painkillers are important parts of the prescription medications that help to minimise suffering of people every day. They are prescribed every day, and they are used universally.

However, we also have heroin, also an opiate, which if used without prescription is illegal because it is a controlled substance and is dangerous in terms of human consumption. Again we will have people in the community who argue, 'Heroin should be legalised. It is unsafe for us to continue to keep it in our criminal code because you are not going to stop it. Prohibition has never worked. Just look at the 1930s in the United States. We should legalise it, and then we can manage the industries that create it, and it can be sold and administered as though it is any other product.'

Personally I do not support that, and certainly on this side of the house we are not about to rush in and legalise heroin, but I use it as an example of where under prescription, under medical supervision, it provides an important part of the support for our medical treatment, but it cannot be under our current law made available as some kind of recreational drug. So, too, I say with the use of cannabis oil for medicinal use of marijuana, as they call it. That process has had considerable attention at the federal level.

There is currently an approved process that enables someone who has a child or family member—or it could be for themselves—to get a prescription from a medical practitioner and then go to a pharmacy outlet to purchase cannabis oil for that purpose. As I understand it, I think it is a bit of an interim process for those who are currently converts to this, who say, 'We desperately need it for our children,' etc. The federal government has announced that that is a process available to them.

Some people who use cannabis oil for medical reasons do not want to go down that course. I have met some of them in the course of consultation. They say, 'I get a supply on the internet. I buy it locally, and there is risk of me being prosecuted or the provider of the cannabis oil being prosecuted.' That is a choice they make. They say they do not want to have the risk of going to a doctor and the doctor saying, 'No, you or your child do not need this,' and therefore not getting the prescription. That is what they tell me.

In any event, it is a developing area of reform, licensing and protection through the federal system. There is an interim measure to ensure that, for those who strongly rely on it and feel it has merit, who want to access it and feel they need to access it, they are able to continue to do so. I expect that will develop into clearer access in due course. I would say to those who are buying it from people who are growing and preparing it illegally, or are buying it on the internet, it does concern me not just as the Attorney-General but also as the Minister for Consumer and Business Affairs.

As a consumer, people place themselves at risk by purchasing medication which has not gone through an approved process. It may or may not be pure, it may or may not be laced with something more dangerous, and it may or may not be effective or value for money. You are vulnerable if you purchase offline, so to speak—or in this case, online. You are not protected by the prescription process and the standards in relation to drug manufacture for pharmacy products.

I hope that makes it clear to the member for Elizabeth. This is not intended in any way, nor does it have any impact or impinge on, the legitimate development of medicinal marijuana use under the current federal process. Nor will it affect the commercial Indian hemp cultivation which we have progressed under the blessing of statute.